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Overlapping Disciplinary and Grievance Procedures

It is a common occurrence that during a disciplinary process an employee will frequently raise a grievance (and often some terrible grievances as workers use their ‘one last opportunity’ to put the world to rights from their perspective). This raises the question for an employer as to whether the disciplinary process should be interrupted until the grievance has been heard and concluded.

As is frequently the case the more recent (post 2009) ACAS Code of Practice is not of much help, having been parsed down to the simplest of advisory statements (were the ACAS Guide to have statutory status the situation would be much improved). However, this is what it says on the subject of overlapping disciplinary and grievances:

46. Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently.

One struggles to think of how this advice could be any more woolly; instead of “may” why not “should” or “should normally”?

This is a difficult issue for employers – after all, some employees may well use a complaint as a stalling mechanism for no other reason than to defer the inevitable (dismissal) which, understandably, employers will be concerned about. This difficulty makes the vacuous advice from ACAS even more galling.

Surprisingly, I have been able to identify very little caselaw on this subject. There are however two cases upon which I will comment, although both seem broadly consistent: Samuel Smith Old Brewery (Tadcaster) v Marshall concerns dismissing an employee where there is an outstanding grievance appeal while Jinadu v Docklands Buses Limited concerns the more common situation of whether a disciplinary hearing should be suspended pending the outcome of a ongoing grievance.

I turn to the latter case first. The claimant in Jinadu was told by her manager to attend a training course that was related to the role as a bus driver, she refused. She was subsequently called to a disciplinary hearing on the basis that she refused a management instruction. At that hearing the meeting was adjourned so that the claimant could in fact attend the training course which, if she failed, would mean dismissal was a possibility on inefficiency (not conduct) grounds. The claimant did fail that course and was subsequently dismissed although whether that was because of conduct (refusal of management instruction) or inefficiency (failure to pass test) was unclear and the EAT remitted the case back to the ET to determine that issue. However, at some point the claimant made a grievance against two employees, Mr Butterfield and Mr Dalton and the claimant was dismissed without that grievance having been considered. One of the grounds of appeal to the EAT was that the employer should not have dismissed the claimant without that grievance being considered first.

Unfortunately, given the lack of guidance in the ACAS Code of Practice the EAT in Jinadu did not utilise the opportunity to provide some clear guidance to employers on when it is reasonable to dismiss an employee without first resolving extant grievances. The whole of J Supperstone’s consideration can be found in one paragraph (18):

In my judgment the Tribunal was entitled to make the findings and reach the conclusions it did in relation to the Respondent’s breaches of procedure.  In particular, I reject Mr Ogilvy’s submission that the Respondents were obliged to put the disciplinary investigation on hold until they had dealt with the Appellant’s grievances.  I also reject the submission that Mr Butterfield and Mr Dalton, in particular, should not have been involved in the disciplinary process, as the Appellant had raised grievances against them.  Mr Russell conducted the disciplinary hearing, and the Appellant had no extant grievance in relation to him.

And that’s it! No reasons, just one sentence.

You may have blinked and missed it so I will restate it: “I reject Mr Ogilvy’s submission that the Respondents were obliged to put the disciplinary investigation on hold until they had dealt with the Appellant’s grievances”

However deficient the reasons given by the EAT are, on the facts of the case it seems to me the decision that the dismissal was  a reasonable one is correct since that it appears the grievance was related to conduct of other staff that was not directly material to the case and  were not hearing the case (so no allegation that independence or bias was at issue). But, in his closing remark that “Mr Russell conducted the disciplinary hearing, and the Appellant had no extant grievance in relation to him” J Supperstone provides an indication that his finding is not a general one, but one very much based on the facts of the case.

But what if  the claimant had had an extant grievance at the time of the dismissal hearing that concerned the decision maker? Would the dismissal then have been unfair?

The EAT judgment certainly suggests that that would have been a finding open to the ET – this seems right to me and one of those occasions where it is right that disciplinary proceedings should be suspended. After all, it is not hard to envisage a scenario where a manager has a personal vendetta against an employee and, as part of a campaign of bullying moves to sack the employee. Were that employee to raise a grievance that she was being bullied by the manager holding the meeting it would surely be in the employer’s as well as the employee’s interests to suspend proceedings to investigate the matter. After all, if they don’t not only is there a risk of an injustice being done but there’s a risk of a costs by the employer in ET proceedings that could otherwise be avoided!

The other case, Samuel Smith Old Brewery (Tadcaster) v Marshall, reads like a farce in which it appears the claimants were dismissed because they relied on arguably negligent advice by their union (Unite). The nub of the case however was again a failure to follow a management instruction but here the case overlap with the dismissal reason was clearer than in Jinadu. The claimants (who were managers) were told to reduce the hours of work given to their employees which the claimants objected to by lodging a grievance. That grievance was heard and rejected and the claimants were told to implement the changes. The claimants appealed the grievance rejection and refused to comply with the instruction to reduce hours because the grievance appeal was unresolved. The employer made clear that even though the grievance appeal was  outstanding the instruction to reduce hours of staff must be complied with (if the grievance was successful then the hours not paid would be paid). In the event the claimants still refused and a disciplinary hearing was convened which they did not attend (on advice from their union) at which they were dismissed. On the question of whether an employer must hear a grievance appeal before a disciplinary the EAT found, at paragraph 66:

There is no authority for the proposition that it is necessary to complete the entire grievance procedure (including an appeal) before a disciplinary hearing can take place. We would suggest it can only be in the rarest of cases that it would be outside the range of reasonable responses for an employer to proceed with a disciplinary process before hearing a grievance appeal, at least in the absence of some clear evidence of unfairness or uncompensatable prejudice. It is important to bear in mind that this is not a case where there had been no grievance hearing at all, such a hearing had taken place, which rather makes the Respondent’s case stronger.

In some senses (despite in others the employer going above and beyond in ensuring a fair process) this is a harsh decision since clearly the matters were directly related but they were not contingent on each other. The suggestion that where there is a case of unfairness or uncompensated prejudice that could jeopardise a disciplinary hearing a deferral may be appropriate would seem to at least equally apply in the case of an initial grievance hearing.  It seems to me that it is precisely in those sort of cases (for example, discriminatory or bullying motives of a manager hearing a case) that would justify a suspension of a disciplinary hearing and, conversely, could justify a finding of unfair dismissal if such a suspension was not granted.

 

Cases Referenced:

Jinadu v Docklands Buses Ltd [2015] UKEAT 0434_14_1703

Samuel Smith Old Brewery (Tadcaster) v Marshall & Anor [2010] UKEAT 0488_09_3103

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